Gray v. Carleton , 35 Me. 481 ( 1853 )

Shepley, C. J.

— The demandant appears to have labored during the year 1848 upon a house built by Henry Rowe, on land then owned by Thomas Warren, who had, as Rowe states, agreed to provide certain materials and to assist him with money to enable him to build the house, and had agreed to convey the land, on which it was to be built, upon payment of an agreed price, and of the money advanced, and of the value of the materials furnished.

The demandant caused the estate to be attached to secure a lien for payment of his services ; recovered judgment against Rowe, in October, 1850, and caused an execution issued thereon to be levied on part of the lot of land, on Nov. 15, 1850.

This suit has been commenced to recover possession of the land thus levied upon. Rowe does not appear to have performed his contract with Warren, or to have become at any time the owner of the land. It is only by virtue of the lien created by statute, c. 125, § 37, and the proceedings before stated, that the demandant claims to have acquired title.

There are insuperable obstacles to a recovery. The- labor does not appear to have been performed by virtue of any contract with the owner, or by virtue of any contract made with another person “ who had contracted with such owner.”

There does not appear to have been any contract between Rowe and Warren, that Rowe should build the house for Warren. He appears to have been building it for himself, for his own use or gain, or loss, and to have obtained credit from Warren to enable him to do it; and for security the house and land were to remain the property of Warren until he should be paid. The demandant does not therefore present a case, in which a lien was created by the statute.

If the Court could consider that he had, the statute was amended by the Act approved on June 28, 1850, by striking out the words, £< or other person who had contracted with such owner,” and this repeal of that clause was in force before the levy in this case was made ; and there remained no legal authority for making such a levy upon the land of another, than the judgment debtor. Bangor v. Goding, 35 Maine, 73. Demandant nonsuit.

Tenney, Wells, Howard, and Appleton, J. J., concurred.